Surrogacy Medical Debate

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1 Statutory Regulation Of Surrogacy Who does the law protect? By Jamal Ross Everything about woman is a riddle, and everything in woman has one solution: that is pregnancy2 . This misogynistic view employed b y o n e o f t h e e a r l y forefathers of modern philosophy is, arguably, still an inherent part of modern society. Many women believe that bearing children is an integral part of womanhood and at times men may view women as ‘baby-making machines’ 3 . If a couple is unable to naturally conceive or carry a pregnancy, their embryo can be placed into the uterus of a n o t h e r w o m a n f o r gestation-this is known as full surrogacy. This woman acts as a surrogate; she carries the pregnancy until birth with the intention of returning the baby to the commissioning couple. Alternatively, the surrogate m a y u n d e r g o p a r t i a l surrogacy where she inseminates herself with the sperm of the commissioning father so she will, in effect, be the biological mother of the child. Surrogacy provides a solution for couples that are unable to have children. The current laws governing surrogacy have been ridiculed 2 for failing to address some of the key issues that arise and, as a direct result, there is a growing demand for social An Indian Surrogate prepares to give birth to a baby boy for an American couple who are unable to conceive a child. March 2013

description

A critical analysis of the British legal system and the way it governs surrogacy practices in the UK.

Transcript of Surrogacy Medical Debate

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Statutory Regulation Of SurrogacyWho does the law protect?By Jamal Ross

“Everything about woman is

a riddle, and everything in

woman has one solution:

that is pregnancy”2. This

misogynistic view employed

b y o n e o f t h e e a r l y

f o re fa thers o f modern

philosophy is, arguably, still

an inherent part of modern

s o c i e t y . M a n y w o m e n

b e l i e v e t h a t b e a r i n g

children is an integral part

of womanhood and at times

men may view women as

‘baby-making machines’3. If

a coup le i s unab le t o

naturally conceive or carry a

pregnancy, their embryo can

be placed into the uterus of

a n o t h e r w o m a n f o r

gestation-this is known as

full surrogacy. This woman

acts as a surrogate; she

carries the pregnancy until

birth with the intention of

returning the baby to the

commiss ion ing coup le .

Alternatively, the surrogate

m a y u n d e r g o p a r t i a l

s u r r o g a c y w h e r e s h e

inseminates herself with the

sperm of the commissioning

father so she will, in effect,

be the biological mother of

the child.

S u r r o g a c y p r o v i d e s a

solution for couples that are

unable to have children. The

current laws governing

s u r r o g a c y h a v e b e e n

ridiculed2 for failing to

address some of the key

issues that arise and, as a

direct result, there is a

growing demand for social

An Indian Surrogate prepares to give birth to a baby boy for an American couple who are unable to conceive a child.

Mar

ch 2

013

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reform. A recent statement

m a d e b y S t e p h a n i e M .

Caballero

(Pictured right) stated that the

s t a t u t o r y r e g u l a t i o n o f

s u r r o g a c y i s s o m e h o w

inadequate in safeguarding

those who are genuine victims

o f c h i l d l e s s n e s s . I n m y

opinion, this is a valid scrutiny

of current British law. In this

ar t i c le , I wi l l c r i t i ca l ly

evaluate the weight of this

statement by analysing the

f o l l o w i n g a r e a s : N o n -

e n f o r c e a b i l i t y a n d l e g a l

p a r e n t h o o d , p r o c r e a t i v e

autonomy and the outsourcing

of pregnancy.

Non-enforceability and legal parenthood

Historically, there has been a

natural aversion to the practice

of surrogacy; it was coined by

Omrod LJ as an ‘inhuman

proceeding’ in A v C2 and later

ridiculed3 in the 1984 Warnock

report. Perhaps, this prima

facie repugnance to surrogacy

s t e m s f r o m t h e c o m m o n

i m p l e m e n t a t i o n o f t h i s

technique in rearing cows as

alluded to by Cumming Bruce

LJ when he likened it to a

‘baby farming operation’2.

In Re C (A Minor) (Wardship:

Surrogacy)3 – the ‘baby cotton’

case- regarding a baby who had

already been born due to a

surrogacy arrangement, Latey

LJ affirmed that ‘All that

matters is what is best for her

now that she is here’. This case

set the precedent for how

surrogacy arrangements are

viewed in the courts in that it

would rarely be justifiable to

order the surrogate, by law, to

r e t u r n t h e b a b y t o t h e

commissioning couple.

The Human Fertilisation and

E m b r y o l o g y A c t 1 9 9 0

introduced section 1B into the

Surrogacy Arrangements Act

1985 which states that: ‘No

surrogacy arrangement is

enforceable by or against any of

the persons making it2’. Thus,

s u r r o g a c y a r r a n g e m e n t s

themselves are not illegal per

se3 but any arrangements made

by the participating parties are

n o t l e g a l l y b i n d i n g a n d

prosecution may not be taken

against those who refuse to

fulfill their agreements. This

laissez-faire approach does

l i t t l e t o p r o t e c t t h e

c o m m i s s i o n i n g c o u p l e ,

particularly if all alternative

forms of assisted reproduction

such as IVF , have been

exhausted.

“Statutory regulation of surrogacy does not serve the needs of those who would wish to use surrogacy to overcome childlessness.”

Stephanie M. Caballero

Surrogacy Lawyer , USA

Hyderabad Surrogacy ClinicHyderabad Fertility Clinic in India uses advanced IVF technology to grant prospective parents a biological child.

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In 1984, the Warnock report was

published by a committee to give

guidance on rapidly advancing IVF

technology and the pract ice o f

surrogacy. The report has been widely

influential in the formation of the

Human Fertilisation and Embryology

Act [HFEA] 1990, however, i ts

recommendations regarding surrogacy

have not been completely implemented.

The committee overtly stated:

“We recommend that it be provided by

statute that all surrogacy agreements

are illegal contracts.2”

One can easily see the dangers of

implementing such an uncompromising

strategy as it may force the emergence

of an underground trade3 particularly

as fertility rates have been on a

steadily decline in 20-25 year olds4.

Interest in surrogacy was reinstated in

1 9 9 8 w h e n t h e g o v e r n m e n t

commissioned a report from the Brazier

committee2, which like the Warnock

report, proposed that regulation of

surrogacy should not endorse its

practice3. Interestingly, the minister of

public health at the time, Tessa Jowell,

specif ied that ‘enforceability of

contracts’ was not to be on the agenda

of the Brazier report4. This is rather

surprising as it is undoubtedly a

fundamental part of Jowell’s initial

reason for obtaining a report, namely

‘to ensure that the law continued to

meet public concerns’5

Section 33 of the HFEA (2008) outlines

unambiguously that the woman who is

carrying or has carried a child is the

legal mother of the child:

‘The woman who is carrying or has

carried a child as a result of the placing

in her of an embryo or of sperm and

eggs, and no other woman, is to be

treated as the mother of the child.’ 6

This would mean that a gestational

surrogate7 reserves the right to

terminate the pregnancy of a foetus

which is, at least genetically, not

related to her. In order for the

commissioning couple to be treated as

the legal parents of the child, they

must either undergo an invasive

process to adopt that child8 or apply for

a parental order under section 30 of the

HFEA [1990]9.

In regards to paternity, under section

28 of the HFEA (1990) and section 38 of

the HFEA (2008) the surrogate’s

husband or civil partner is deemed as

the legal father unless he did not

consent to her treatment. Involuntarily,

he may be assumed to consent if he

knew of her decision but, at the time,

did not object. In Re G2 it was initially

thought that the surrogate mother’s

estranged husband, who resided in

Spain, was the legal father as there

was no sufficient evidence to show his

objection to her treatment. However,

due to his estrangement he was unable

to give his consent to the granting of a

parental order.This case was proven to

be particularly dif f icult as the

commissioning couple resided in

Turkey, but a prerequisite of a parental

order is that one of the parents must be

domiciled

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Octavia and Dominic Orchard (Pictured below) travelled to the Hyderabad clinic to get around a UK ban on commercial surrogacy.

Daily Mail , Sept 2012

in the UK, a need that was also expressed by

the Brazier committee2 where they discussed a

hypothetical ‘surrogacy act’ which would ensue

a code of practice that organizations such as

COTS can comply with.

These laws were really designed to govern

sperm donation but have been extrapolated to

preside over surrogacy cases, as there is no clear

legislative infrastructure. In this case, the

biological father is treated merely as a sperm

donor and may not acquire legal parenthood

status unless a successful parental order or

adoption has been completed. For a parental

order to be successful, the surrogate must agree

unconditionally to the making of the order as

well as the surrogate’s partner if he has been

regarded as the father3. The child must also

already be living with the commissioning couple

before the application is made. Adoption,

however, is regulated under the Children Act

(2002) and likewise, consent is required from

the surrogate unless they are found incapable of

c o n s e n t i n g 4 . I n b o t h s c e n a r i o s , t h e

commissioning couples are powerless and rely

Defining Parentage in SurrogacyWho is the rightful mother?

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on the surrogate parents to agree to the

transferral of legal parental responsibility.

The Surrogacy Arrangements Act (SAA) 1985

was passed in order to stop the commercial

involvement of surrogacy arrangements2. In Re

X and Y3 disproportionate sums of money were

paid to the surrogate, which exceeded ‘expenses

reasonably incurred’4. However, it was raised by

Hedley J that payments will almost always be

retrospectively authorised by the courts as the

welfare of the child is of primary concern.

Parenthood may be defined by either of the

following perspectives: genetics, intention,

gestation, or causality2. If one employs the

lockean notion of self-ownership3 then it could

be argued that the biological parents own the

DNA from which the child is composed, granting

them a warranted parental claim. However, an

argument of this kind has been criticized4 for

deriving claims of parenthood from premises

pertaining to ownership. Furthermore, the

concept of self-ownership would suggest that

children own themselves and thus dispels any

biological proprietary claim made by parents.

Additionally, this point disregards the

essentiality of the placenta and other

extraembryonic membranes, which provide

nutrition and protection to the foetus and are

entirely derived from the gestational mother.

Our perception of heritability does not account

for the fact that children also exogenously

inherit religious beliefs, customs, habits and

personality traits.

In Johnson v Calvert2, the California Supreme

Court declared that both the gestational mother

and the commissioning mother (who was also

the biological mother) had shown ‘acceptable

proof of maternity’. Justice Panelli used

intention as the factor to decide who should be

the rightful mother. Since the gestational

mother voluntarily contracted away any rights

to the child, it was evident that it would not be

in the child’s best interests to go into her

custody. Whilst it is true that without the

commissioning couple, the child born of the

surrogacy arrangement would not have existed,

it is virtually impossible to decide parentage on

the basis of causality, as the gestational mother

is also a causal agent namely through the

implantation of the embryo into the uterine

wall.

The present law governing surrogacy is monistic

in that there is a presumption that gestation

alone can be used to identify the mother. A

pluralistic approach, whereby other factors,

apart from gestation, are considered may lead to

the commissioning couple being declared as the

rightful parents, as explained by Panelli J2.

In the more contemporary case CW v NT2, the

commissioning couple sought to obtain a

residence order under the Children Act 1989 as

the surrogate decided to keep the baby that she

had agreed to hand over. The application was

refused on the basis that the baby had a good

attachment with the mother and was thriving in

her care. Here, Baker J affirmed that the

primary consideration was what would be in the

baby’s welfare and, considering this, concluded

that removing the baby from the mother would

be unjust.

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Is there a right to Procreative autonomy?

It is typically a sacrosanct principle

that there is a right to private and

family life2. Moreover, whilst there is a

right to life3 there is no legal right to

create new life. An important question

is ultimately whether we consider

childlessness to be a type of pathology

and hence an area of public interest

which creates a duty of care from the

National Healthcare Service. More

importantly, does a woman have a right

to motherhood? And, if so, does a man

also have a right to fatherhood? If one

is to accept the first premise then,

through the notion of sexual equality, it

would suggest that homosexual couples

too are entitled to ‘have’ children. As of

the 6th of April 2010, gay couples were

allowed to apply for parental orders

and become legal parents through

surrogacy. Perhaps, this is due to the

general consensus that a right to

motherhood and fatherhood exists.

If we subscribe to forms of a ‘natural

rights theory’, particularly the notion

that rights are intrinsic by virtue of

their being God’s creation, it would

follow that men and women are

entitled to such experiences. On the

other hand, one might contest the

above position by supposing that rights

are given by society and are not

intrinsic. From this, it would support

the ability of the government to

“A human right to procreate involves an obligation on others not to limit a person’s liberty to decide when and how many children he will have”Michael Bayles

Procreative LibertyKnowing your rights

Pushing BoundariesKate Georgeman has a child at the age of 56 with the help of a much younger surrogate mother.

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overturn an individual’s article 8

rights, as it is merely a qualified right

and not an absolute right.

John Robertson defends the right to

procreative liberty and asserts that it is

inextricably linked to autonomous

parental choices2. Perhaps though, part

of the reluctance of society to grant

procreative autonomy is that it would

also subsume a right to prenatal

testing and preimplantation diagnosis,

which may promote a slippery-slope

ideology, allowing people to control

whether their offspring have particular

traits, initiating a kind of bottom-up3

eugenics.

The process o f pregnancy and

childbirth has been increasingly

medicalised in the 21st century and is

therefore managed and overseen by

medical professionals. The feminist

bioethicist Lyerly argues in her

poignant discourse ‘shame, gender,

birth’4, that there is a problem with the

culture of birth and pregnancy in that

it is expert-centered rather than

patient-centered and ‘focuses on models

of birthing rather than women’s

emotional lives’. This view supports the

initial statement that statutory

regulation does not cater to those

trying to overcome childlessness as

people tend to be enthralled by the

medical feat of surrogacy rather than

its utility and cultural significance.

Outsourcing of pregnancy- Exploitation or philanthropy?

The vociferous opponent of surrogacy

arrangements, Mary Warnock, in the

1984 Warnock report wrote:

“It is therefore with the commercial

exploitation of surrogacy that we have

been primarily, but by no means

exclusively, concerned.5”

To suggest that surrogacy is somewhat

exploitative requires, in my opinion,

rigorous validation, which the Warnock

report fails to provide, yet it is crucial

to determine whether the ‘needs’ of

commissioning couples are justifiably

disregarded. By analysing the process

of outsourcing pregnancy, one can

determine whether this is due to a

failure of British statute to overcome

childlessness or an insight into the

exploitative nature of surrogacy.

Recently, there has been a growing

trend of prospective parents seeking

out surrogate mothers in India at a

reduced cost and with other legal

benefits. In India, the surrogacy clinics

recruit local women who are screened

for a plethora of infectious diseases.

The healthiest women are chosen as

surrogates and fertilised embryos are

i m p l a n t e d i n t o t h e s u c c e s s f u l

Outsourcing WombsThe booming Surrogacy Industry In India

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candidates. Interestingly, there is a

contractual agreement, which under

Indian law, specifies that the surrogate

m u s t r e t u r n t h e b a b y t o t h e

commissioning couple after giving

b irth . Some would regard this

arrangement to be exploitative, partly

because monetary payments are even

lower than in the developed world and

the women are often living in extreme

cases of poverty. It has been said that:

“To exploit a person involves the

h a r m f u l , m e r e l y i n s t r u m e n t a l

utilization of him or his capacities, for

one’s own advantage or for the sake of

one’s own ends2.”

This definition would support the view

that surrogacy is, by its very nature,

exploitative. Yet, in saying that, it

could also be argued that exploitation

only exists when the ‘advantage

received is incommensurate with the

price paid’3.

This begs the question: What is a fair

price to pay for a child? In one sense,

these surrogacy arrangements are a

form of consensual exploitation but are

also reciprocally beneficial. However,

a l t h o u g h t h e b e n e f i t s o f t h e

a r r a n g e m e n t a r e s h a r e d , t h e

exploitation itself is asymmetric. On

the one hand, Hill postulates2 that

exploitation is psychological rather

than being an economic or social

“Persons are exploited if others secure a benefit by using them as a tool or resource so as to cause them serious harm.”

Munzer, 1990

Outsourcing WombsPictures taken at Hyderabad clinic, where thousands of Westerners flock to pursue surrogacy options.

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concept. He states that exploitation must take

‘advantage of some recognised psychological

vulnerability which, in turn, disturbs the

offeree’s ability to reason effectively.’ Most

notably, this resonates with the current

surrogacy pacts that are made in India. The

money that Indian surrogates receive is equal to

15 years of wages and enables many of them to

buy a house, ameliorating some of the daily

turmoil of poverty. Perhaps, this incentive

distorts their ability to make a rational choice or

coercion from family members may be sufficient

for a woman to enroll in the surrogacy scheme

making her agreement nonconsensual.

Conclusion

Mason and smith purport that the judicial

procedure is derived from the ‘fait accompli’

with little compassion for those involved2.

Personally, I am of the view that the statement

raises a valid claim that the needs of

commissioning couples are not served

a d e q u a t e l y . M o r e s o , i t e n c o u r a g e s

marginalisation and inequality as mothers who

are poor or who have no family ties are less

likely to have access to willing surrogates.

Possibly, the reason for the monistic legal

definition of maternity is that it is a practical

means to determine who the legal mother is

with little confusion. To some degree, there

needs to be a reconceptualisation of surrogacy

by society, which, in turn, may make practices

such as child sharing more acceptable2. Current

social attitudes negate previous assertions that

surrogacy is prima facie unlawful implying that

the relevant laws are somewhat outdated. Some

have argued on religious grounds that surrogacy

itself is ‘unnatural’3 and against the will of God.

Conceptually, it could be said however that

Mary, the mother of Jesus, was acting as a

surrogate, in that she never engaged in any

sexual activity but conceived and gave birth to a

child.

Needless to say, there is no explicit right to

procreate so a duty of care does not necessarily

arise. In closing, the overriding issue is the lack

of an overseeing body to govern organisations

such as COTS. In 2004, a surrogate mother,

Carole Horlock, underwent full surrogacy for a

commissioning couple, giving birth to a healthy

baby boy. It was not until a few months later

that the couple discovered, through a DNA test,

that the baby was not theirs biologically but was

the child of the surrogate and her husband. This

further exemplifies the disastrous outcomes

faced by not having a supervisory mechanism to

closely monitor these arrangements which may

ultimaltely lead to the detriment of the

commissioning couple and the child.

Author: Jamal Ross© Meddebate 2013

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References

Books

Friedrich Nietzsche, ‘On Little Old and Young Women’ in Thus Spoke Zarathustra, trans. Walter Kaufman, in The Portable Nietzsche, New York: Penguin Books, 1954, p.178-9.

Kuhse and Singer, Bioethics,(2006) Blackwell philosophy anthologies, 2nd Ed, pp 150-156

Cook, R. (2003) ‘Surrogate Motherhood: International Perspectives.’pg 118

LK. Mason and A. McCall Smi th , ( 1999 ) , Law and medical ethics (5th Edn.)

Harrison-Barbet, Mastering Philosophy, 2nd ed (2001)

Jackson, Medical Law. 2nd ed ., Oxford: Oxford University Press, (2010)

Herring, Medical ethics and law, 3rd ed .,Oxford: Oxford University Press, (2010)

Journals And Other Academic Literature

Mary Warnock, ‘Report Of The Committee Of Inquiry Into Human Fertil isation And E m b r y o l o g y , ( 1 9 8 4 ) Department of Health & Social Security. ch 8, para 8.19 pg 47

Shalev, C. ‘Birth Power’, (1989) New Haven: Yale University Press.

M i c h a e l f r e e m a n , ‘ D o e s surrogacy have a future after Brazier?’ (1999) 7 Medical Law Review 1-20

Olsaret t i , Serena . 2004 . L iber ty , Deser t and the

Market. Cambridge University Press. p. 91

Bayne and Kolers, ‘Parenthood and Procreat ion ’ , (2006) Stanford Encyclopedia of Philosophy

Lyerly, Anne Drapkin, ‘Shame, g e n d e r , b i r t h ’ ( 2 0 0 6 ) , HYPATIA 21(1) pp. 101-118

Buchanan, A., (1985), Ethics, Efficiency, and the Market, Totowa: N.J.: Rowman and Allanheld.

Benn, S., 1988, A Theory of F r e e d o m , C a m b r i d g e : Cambridge University Press.

Hill, J.L., 1994, “Exploitation,” Cornell Law Review, 79, pp. 631-99.

Wallbank, J. (2002) ‘Too many mothers? Surrogacy, kinship and the welfare of the child’, pg 293

Brazier, M. (1999) ‘Regulating the Reproduction Business?’, Medical Law Review 7

W e r t h e i m e r , A . ( 2 0 0 8 ) ‘ E x p l o i t a t i o n ’ , S t a n f o r d Encyclopedia of Philosophy

Satz, D. (2010) ‘Feminist Perspectives on Reproduction and the Family’, Stanford Encyclopedia of Philosopohy

Kukla and Wayne,. (2011) ‘ P r e g n a n c y , B i r t h , a n d M e d i c i n e ’ , S t a n f o r d Encyclopedia of Philosophy

Websites

http://www.vjmovement.com/truth/416

-http: / / fora.tv /2009/07/20/Michael_Sandel_on_Markets_and_Morals – Outsourcing pregnancy to India.

-http: / /plato.stanford.edu/entries/feminism-family/

-http: / /plato.stanford.edu/entries/parenthood/

-http: / /plato.stanford.edu/entries/exploitation/

Statutes

Surrogacy Arrangements Act [1985]

Human Ferti l isation and Embryology Act (2008)

Children Act, [2002]

Human Rights Act [1998] Article 8

Human Rights Act [1998] Article 2

Cases

-CW v NT [2011] EWHC 33 (Fam)

- A v C Not reported until 1985, [1985] FLR 445.

-Briody v St Helens and K n o w s l e y A r e a H e a l t h Authority [2001] EWCA Civ 1010

- Johnson v Calvert 851 p 2d 776, 782 (Cal 1993)

-[1985] FLR 453

-Re C (A Minor) (Wardship: Surrogacy) [1985] FLR 846

-Re G [2007] EWHC 2814 (Fam)

-Re X and Y [2008] EWHC 3030 (Fam)

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